Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Horticulture Marketing and Research and Development Services Bill 2000

Part 2 The industry services body and the industry export control body

Division 1 Simplified outline

8   Simplified outline

                   The following is a simplified outline of this Part.

A body may be declared by the Minister to be the industry services body and/or the industry export control body if the body is established as a company limited by guarantee under the Corporations Law and has an appropriate constitution (see section 9).

The Secretary may enter into a deed of agreement with a declared body (see section 12). The public may obtain access to the deed of agreement (see section 14).

A declared body may cease to be declared in certain circumstances (see section 10).



 

Division 2 Declarations

9   Declaration of the industry services body and the industry export control body

             (1)  The Minister may declare a body to be the industry services body if:

                     (a)  the body is a trading corporation to which paragraph 51(xx) of the Constitution applies; and

                     (b)  the body is a company limited by guarantee incorporated under the Corporations Law; and

                     (c)  the Minister has had regard to whether the body’s constitution is appropriate for a body performing the functions of the industry services body; and

                     (d)  the body has entered into a deed of agreement with the Commonwealth under subsection 12(1).

The declaration must be by notice in writing.

Note:          For information about staff, assets, contracts and liabilities of the industry services body following its declaration, see Part 2 of the Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 .

             (2)  The Minister may declare a body to be the industry export control body if:

                     (a)  the body is a trading corporation to which paragraph 51(xx) of the Constitution applies; and

                     (b)  the body is a company limited by guarantee incorporated under the Corporations Law; and

                     (c)  the Minister has had regard to whether the body’s constitution is appropriate for a body performing the functions of the industry export control body; and

                     (d)  the body has entered into a deed of agreement with the Commonwealth under subsection 12(2).

The declaration must be by notice in writing.

             (3)  The Minister may declare the same body to be both the industry services body and the industry export control body. However, the Minister must not declare more than one industry services body, or more than one industry export control body, at any one time.

             (4)  A notice under this section must specify the day on and after which the relevant body is to be the industry services body or the industry export control body. That day must not be earlier than the day after the day, or the later of the days (as the case may be), that paragraph (6)(a) is complied with.

             (5)  The declaration has effect accordingly.

             (6)  The Minister must cause a copy of each declaration under this section to be:

                     (a)  laid before each House of the Parliament or, if a House is not sitting, presented to the Presiding Officer of that House for circulation to the members of that House, within 5 sitting days after the declaration is made; and

                     (b)  published in the Gazette within 14 days after the declaration is made.

          (6A)  For the purposes of subsection (6), if a House has been dissolved and the newly-elected House has not met when a declaration is provided to the Presiding Officer, circulation to the persons who were members of that House immediately before the dissolution is taken to be circulation to the members of the House.

          (6B)  To avoid doubt, the function of a Presiding Officer of receiving and circulating a declaration under subsection (6) is a function of the Presiding Officer for the purposes of the Parliamentary Presiding Officers Act 1965 .

             (7)  The declaration is not invalid merely because it has not been published as required under subsection (6).

10   Cessation of declaration of the industry services body or the industry export control body

             (1)  The Minister may declare:

                     (a)  that the body that is the industry services body ceases to be the industry services body; or

                     (b)  that the body that is the industry export control body ceases to be the industry export control body;

if the Minister has grounds, under subsection (2), for making the declaration. The declaration must be by notice in writing.

             (2)  The Minister has grounds for making the declaration if:

                     (a)  the body gives the Minister a written request that the declaration be made; or

                     (b)  the Minister has reasonable grounds to believe that the body has engaged in actionable conduct; or

                     (c)  the Minister has reasonable grounds to believe that:

                              (i)  the body’s constitution is no longer appropriate for a body performing the functions of the industry services body; or

                             (ii)  the body has failed to comply with its constitution; or

                     (d)  an administrator of the body is appointed; or

                     (e)  the body commences to be wound up or ceases to carry on business; or

                      (f)  a receiver, or a receiver and manager, of property of the body is appointed, whether by a court or otherwise; or

                     (g)  the body enters into a compromise or arrangement with its creditors or a class of them; or

                     (h)  the following circumstances exist:

                              (i)  the Secretary gave the body a written notice requesting its consent to a proposed variation under section 13 of the deed of agreement in relation to the body;

                             (ii)  the body did not give its written consent to the variation within the period of 3 months after the day the notice was given, or such longer period as was specified in the notice;

                            (iii)  the Minister considers that without the proposed variation being made, it would not be appropriate for the body to perform the functions of the industry services body or the industry export control body.

Note:          For the meanings of actionable conduct and deed of agreement , see section 4.

             (3)  The notice under subsection (1) must specify the day on which the body is to cease to be the industry services body. That day must not be earlier than the day after the day, or the later of the days (as the case may be), that paragraph (5)(a) is complied with.

             (4)  The declaration has effect accordingly.

             (5)  The Minister must cause a copy of each declaration under this section to be:

                     (a)  laid before each House of the Parliament or, if a House is not sitting, presented to the Presiding Officer of that House for circulation to the members of that House, within 5 sitting days after the declaration is made; and

                     (b)  published in the Gazette within 14 days after the declaration is made.

          (5A)  For the purposes of subsection (5), if a House has been dissolved and the newly-elected House has not met when a declaration is provided to the Presiding Officer, circulation to the persons who were members of that House immediately before the dissolution is taken to be circulation to the members of the House.

          (5B)  To avoid doubt, the function of a Presiding Officer of receiving and circulating a declaration under subsection (5) is a function of the Presiding Officer for the purposes of the Parliamentary Presiding Officers Act 1965 .

             (6)  The declaration is not invalid merely because it has not been published as required under subsection (5).

11   Transfer of industry assets and liabilities after cessation of declaration

             (1)  If the Minister has made a declaration under section 10 that a body ceases to be the industry services body or the industry export control body, the Minister may declare that the body’s industry assets and liabilities are to be transferred (under regulations specified for the purposes of subparagraph (2)(d)(i)) to:

                     (a)  a body that the Minister has declared, or proposes to declare, to be the next industry services body under section 9; or

                     (b)  a trustee of a trust, or a body, that the Minister is satisfied has an objective of furthering the horticulture industry’s marketing and research and development interests; or

                     (c)  in the case of statutory records of the body—the Commonwealth.

Note:          For the meanings of industry assets and liabilities and statutory record , see section 4.

             (2)  The declaration must:

                     (a)  be by notice in writing; and

                     (b)  specify each person or body to which industry assets and liabilities (including statutory records) are to be transferred; and

                     (c)  specify a day (after the day on which the declaration is made) as the day on which the transfer occurs; and

                     (d)  specify regulations that have been made:

                              (i)  providing for the vesting of the industry assets and liabilities; and

                             (ii)  setting out the processes governing the transfer of the industry assets and liabilities; and

                            (iii)  setting out the conditions to which the transfer of industry assets and liabilities is to be subject; and

                            (iv)  relating to arrangements for the transfer of statutory records.

             (3)  The declaration has effect accordingly.

             (4)  The Minister must cause a copy of each declaration under this section to be published in the Gazette within 14 days after the declaration is made.

             (5)  The declaration is not invalid merely because it has not been published as required under subsection (4).



 

Division 3 Deeds of agreement

12   The Minister may enter into deeds of agreement

             (1)  The Minister may, on behalf of the Commonwealth, enter into a deed of agreement with a body (which is proposed to be the industry services body) for the purposes of this subsection.

             (2)  The Minister may, on behalf of the Commonwealth, enter into a deed of agreement with a body (which is proposed to be the industry export control body) for the purposes of this subsection.

Note:          A single deed of agreement may be entered into for the purposes of subsections (1) and (2) if the same body is declared to be the industry services body and the export control body.

             (3)  Subsections (1) and (2) do not, by implication, limit the executive power of the Commonwealth to enter into agreements.

             (4)  Nothing in this Act is to be taken, by implication, to prevent the enforcement of a deed of agreement as a contract.

13   The Minister may vary deeds of agreement

             (1)  The Minister and a body that has entered into a deed of agreement under section 12 may, by written agreement, vary the deed of agreement. The variation must be in writing.

             (2)  The variation must specify the day on which it takes effect. The day must be after the day on which the variation is made.

             (3)  The Minister must publish a notice in the Gazette within 14 days after the variation is made. This notice must:

                     (a)  state that the variation has been made; and

                     (b)  briefly summarise the effect of the variation.

             (4)  The variation is not invalid merely because a notice about it has not been published as required under subsection (3).

14   Public access to deeds of agreement

             (1)  The industry services body and the industry export control body must keep a copy of the deed of agreement in relation to the body at the body’s registered office.

Note:          The deed of agreement includes all variations made to it under section 13.

             (2)  The copy must be available for inspection at the registered office on request, without charge, whenever the body’s registered office is required to be open to the public.

             (3)  The industry services body and the industry export control body must give a person a copy of the deed of agreement in relation to the body if the person:

                     (a)  requests the copy; and

                     (b)  pays any fee determined by the body in accordance with the deed of agreement.

             (4)  If a deed of agreement in relation to the industry services body or the industry export control body is available on the Internet, the body must inform a person seeking a copy of that fact. (However, informing the person of that fact does not affect the body’s obligations under this section.)